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San Diego DUI Focus on APS hearings and Hearsay Evidence

On behalf of The Law Offices of Mark Deniz APLC posted in DUI Cases on Thursday, February 20, 2014.

The Law Office of Mark Deniz has the privilege of working with some of the best young legal minds in San Diego. One of these persons is Alyssa Frazier. Alyssa is a law student at Thomas Jefferson School of Law. She is on the law review and one of the top of her class. She has an intense desire to help people. She was invited to write on subjects that she comes across while working with the firm.

Today, she is writing about APSDMV hearings and Hearsay Evidence.

APS Hearings and Hearsay Evidence

When a person isarrested for a DUI, the arresting officer will issue them a notice letting themknow to make an appointment with the DMV to request an Administrative Per Se(APS) hearing. During the APS hearing, the court will look at evidence anddetermine whether the accused’s driver’s license should be suspended. In somecircumstances, hearsay evidence may also be used.

Hearsay evidenceis an out of court statement used to prove truth of the matter asserted. An APShearing has a looser evidentiary standard. One example would be a forensicreport by the phlebotomist stating the BAC of the driver. This is usuallyadmissible under a hearsay exception if the report was made directly after theBAC level was taken. However, if the report was not made directly after takingthe BAC, it may not be reliable if it there has been a lapse of time becausethere is a danger of inaccuracy. It is unsure where the line is, how long istoo long, but the court tends to say that even if recorded in something elsefirst, such as in a journal even before report made, this would be enough showthe information was not inaccurate.

However, if theinformation was not recorded somewhere prior to being recorded in the report,then it is up to the Judge’s discretion to determine whether the time betweentaking the information and recording it in the report was long enough to renderthe information unreliable do to danger of inaccuracy. In Glateman v.Valverde, the court determined that 1 week period between the taking ofGlateman’s BAC and the recording of the information into the report was toomuch of a time lapse, and rendered the information in danger of inaccuracy. Glatmanv. Valverde, 146 Cal. App. 4th 700, 703, 53 Cal. Rptr. 3d 319,320 (2006).Therefore, there are some instances where hearsay evidence may be used, but inthis instance, it is at the Judge’s discretion to determine whether theinformation should be allowed in.

On July 24, 2005, Officer J. Baggs stopped Glatman forspeeding on Pacific Coast Highway and observed Glatman exhibited “red wateryeyes, slurred speech, unsteady gait, [and] a strong odor of an alcoholicbeverage.” Glatman stated “he had consumed 4-5 bottles of beer.” He failedseveral field sobriety tests administered by Baggs and was arrested by Baggspursuant to Vehicle Code section 23152, subdivision (a) (driving under theinfluence of alcohol). Glatman surrendered his driver’s license to Baggs andwas notified he could request a hearing to challenge the suspension of hislicense.

A forensic alcohol examination report (the Forensic Report)prepared by the Sheriff-Coroner Department’s Forensic Science Services onAugust 1, 2005, reflected the following: At 12:30 a.m. on July 25, one hourafter Glatman’s arrest, his blood was drawn for a blood-alcohol concentration(BAC) test. That same day a forensic analyst at the sheriff-coroner’sdepartment analyzed the blood sample and determined Glatman’s BAC was 0.137.The next day another sheriff-coroner’s forensic analyst analyzed the sample anddetermined Glatman’s BAC was 0.135. The two analysts certified these testresults by their signatures dated August 1, 2005, on the Forensic Report, oneweek after Glatman’s blood was drawn.

In September 2005, at an administrative per se hearing heldbefore a DMV hearing officer, Glatman’s counsel objected to the admission intoevidence of the Forensic Report on hearsay and other grounds. Under section1280′s hearsay exception for records made by public employees, the ForensicReport was admissible if, among other requirements, “[t]he writing was made ator near the time of the act, condition, or event,” as required by subdivision(b) of that section. Glatman’s counsel argued, inter alia, that suspension ofGlatman’s license was unjustified because his BAC tests were not recorded at ornear the time of the blood analysis. The hearing officer suspended Glatman’slicense for one year, finding, inter alia, the certification of the blood testresults was timely.

Glatman petitioned the superior court for a writ of mandate.At the hearing on the petition, the DMV relied on two reports to establishGlatman’s BAC was greater than the statutory requisite of .08 percent fordriving under the influence of alcohol: (1) the Forensic Report; and (2) thefield sobriety test report of breath tests (preliminary alcohol screen tests)administered by Officer Baggs showing Glatman’s BAC was 0.132 and 0.122. Thecourt stated the Forensic Report was untimely and the field sobriety testreport might be inadmissible. The court directed the parties to further briefthe issue. After considering the supplemental briefing, the court granted thepetition and issued 321*321 the writ commanding the DMV to set aside its suspensionof Glatman’s license.

DISCUSSION

The Court did not Err in Finding the Forensic Report wasUntimely

Appellants contend the court erred in concluding Glatman’sblood test results were not recorded at or near the time of the analysis of hisblood sample. They assert the analysts entered the test results into a computerdatabase soon after completing each analysis, and argue the “preparation of the[Forensic Report] on August 1. 2005 … was simply the retrieval of the recordedinformation from the computer database.” Appellants further contend thatsection 664 “establishes a presumption that [Glatman’s] blood alcohol testresult was recorded in compliance with official duties.”

Applying this standard of review, we conclude the court didnot abuse its discretion in finding the Forensic Report, prepared “a weeklater,” was not made “`at or [near] the time of the event.’”3 Althoughappellants assert the analysts promptly entered the test results into acomputer database, the record contains no support for this assertion. Thecomputer printout in the clerk’s transcript is dated September 6, 2005, onemonth after the date of the Forensic Report. The printout contains no referenceto the date on which the test results were entered into the computer database.Indeed the printout does not even contain both test results but rather asingle, rounded-off result. The record is also silent as to the recordationprocedures followed by the sheriff-coroner’s department. In short, there is noevidence that Glatman’s test results were recorded in a computer database (oranywhere else) prior to August 1.

Appellants quote our Supreme Court’s observation in Martinez,supra, 22 Cal.4th 106, 91 Cal.Rptr.2d 687, 990 P.2d 563, ”that the timelinessrequirement `is not to be judged … by arbitrary or artificial time limits,measured by hours or days or even weeks.’” (Id. at p. 128, 91 Cal. 322*322Rptr.2d 687, 990 P.2d 563.) But the Martinez court also stated:“`Whether an entry made subsequent to the transaction has been made within asufficient time to render it within the [hearsay] exception depends uponwhether the time span between the transaction and the entry was so great as tosuggest a danger of inaccuracy by lapse of memory.‘” (Id, italicsadded.) The Martinez court held the DMV’s “entry into CLETS [CaliforniaLaw Enforcement Telecommunications System] of criminal information it receivesdoes not depend on memory, but simply involves a transfer of information fromone form of storage—the disposition reports—to another—the CLETS database.Under these circumstances, the Department’s statutory recording duties aresufficiently specific to support the trial court’s discretionary determinationthat the CLETS printout met the timeliness requirement of the official recordsexception.” (Ibid.)

In contrast, the instant case presents a “danger of inaccuracyby lapse of memory.” (Martinez, supra, 22 Cal.4th at p. 128, 91Cal.Rptr.2d 687, 990 P.2d 563.) Appellants concede that, if the analysts reliedon memory, “even a lapse of one day could cast serious doubt about whether suchrecordation was made sufficiently `at or near’ the time of testing to be deemedtrustworthy.” But appellants argue that, given the number of tests an analystperforms each day, it is unreasonable to infer the analyst would try to retainall the test results in his or her head. The only reasonable inference,according to appellants, is that “labs have policies and procedures in place toensure the timely recordation of such results by analysts.” But an inferencemay be drawn only if the “proposed conclusion is a reasonable, logical, andnonspeculative deduction from the facts proved.” (S.C. Anderson, Inc. v.Bank of America (1994) 24 Cal.App.4th 529, 539, fn. 12, 30 Cal.Rptr.2d286.) Here, the record is spent as to the department’s recordation policies andprocedures, any automatic recording capability of the testing equipment used,and the average number of tests performed by an analyst each day.

Appellants rely on Komizu v. Gourley (2002) 103Cal.App.4th 1001, 127 Cal. Rptr.2d 229, where an appellate court upheld a trialcourt’s finding that an alcohol analysis report was reliable because “thewording of the report reflected a postponement, not in the recording of theanalysis, but merely in the typing of `a journal-type entry.’” (Id. atp. 1007, 127 Cal.Rptr.2d 229.) Thus, Komizu involved a transfer of datafrom one form of recordation to another (as in Martinez, supra, 22Cal.4th 106, 91 Cal.Rptr.2d 687, 990 P.2d 563.). Here, in contrast, theForensic Report’s wording sheds no light on whether the test results were firstrecorded on a date earlier than August 1.

And while appellants point out the Forensic Report wasprepared only five working days after the date of Glatman’s arrest, memory issubject to erosion with every day that passes, whether working or nonworking.

Alternatively, appellants contend section 664 creates apresumption the analysts timely recorded the test results. Section 664provides: “It is presumed that official duty has been regularly performed.”Appellants argue that regulations promulgated under Health and Safety Codesection 100700 (governing laboratories performing forensic alcohol analysistests by or for law enforcement agencies) impose an official duty on forensicanalysts to properly record test results. But while those regulations requirelaboratories to maintain records, they specify no deadlines or time periods ortimeliness requirements governing such recordation. In Yordamlis v. Zolin(1992) 11 Cal.App.4th 655, 14 Cal. Rptr.2d 225, the Court of Appeal rejected“the DMVs attempt to rely on the presumption 323*323 that an `official duty hasbeen regularly performed …’ (… § 664) to establish that [motorist] gave theblood sample within three hours of driving.” (Id. at p. 661, 14Cal.Rptr.2d 225.) The Yordamlis court found “nothing in the language of[Vehicle Code section 21357] that `imposes any particular time requirement thatcan be assumed to have been met pursuant to the presumption codified by …section 664.’”4 (Id. at p. 661, 14 Cal. Rptr.2d 225.)

Finally, appellants argue the summary nature ofadministrative per se hearings militate against requiring forensic analysts totestify. But there are other ways of evidencing the prompt recordation of testresults, short of analysts testifying—for example, preparing a laboratoryreport soon after completing a test, or at least providing evidence theanalysts’ results were truly entered into the computer database immediately andonly printed out later.

The court did not abuse its discretion in finding theForensic Report was not prepared at or near the time of the recorded event, asrequired under section 1280, subdivision (b).5

DISPOSITION

The judgment is affirmed. Respondent shall recover his costson appeal.

3 The court acknowledged Glatman’s reliance on our opinionin Downer v. Zolin (1995) 34 Cal.App.4th 578, 40 Cal.Rptr.2d 288(Downer), where we stated in a footnote that “a report prepared nearly a weekafter the forensic tests were completed does not fall within the statutoryrequirement that the report be prepared `at or near the time’ of the reportedevent.” (Id. at p. 582, 40 Cal.Rptr.2d 288.) The court noted, however,that the Downer statement was dictum and Downer “was later disapproved by ourSupreme Court in other respects.”

4 Nor does Vehicle Code section 23612′s mandate that bloodtest results be sent to the DMV within 15 calendar days of the date of arresthave any bearing on whether analysis results were timely recorded.

[5] We need not address appellants’ furthercontention the court erred in concluding the evidence did not support a findingGlatman drove with a BAC of at least 0.08 percent, because that contention ispredicated on Appellants’ assumption the test results in the Forensic Reportwere admissible.

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